Secrets and Leaks examines a conundrum in political theory: state secrecy is vital for national security, but it can also be used to conceal wrongdoing. How then can we ensure that this power is used responsibly?

Page 99 finds us in the middle of Chapter 3. This chapter, entitled “Should We Rely on Congress?”, examines whether citizens ought to entrust the oversight of state secrecy to the legislature. The chapter starts by arguing that legislative oversight is confounded by executive privilege—the idea that the executive branch has the right to determine what national security information is shared with Congress. Having defended executive privilege as reasonable, I turn to examine whether an independent arbitrator—a court or a panel of experts—could be appointed to adjudicate between president and Congress with respect to the sharing of classified information. Starting on Page 99, I offer three reasons why such a “secrecy regulator” would prove problematic:

The first question we ought to ask here is what reason is there to believe that adjudges or independent experts are likely to prove reliable arbitrators. The answer, presumably, is that we expect these actors to make decisions based on reasons rather than interests. But what are the relevant sorts of reasons in the present context? Arguably, disputes about information sharing turn on questions of which branch has the most reasonable claim to the information under the circumstances.

Knowing which branch has the better claim in a given case will, I argue, require arbitrators to have deep political knowledge of the 'bigger picture'. For instance, they must know whether the president’s decision to withhold from Congress is really intended to conceal wrongdoing, as opposed to, say, hide a complex diplomatic maneuver from a loudmouth on the relevant congressional committee. How can external arbitrators, insulated from policy-making, be this prescient, I ask.

Moving on, I question the notion that arbitrators can make ‘objective’ judgments:

Furthermore even if the courts or an independent panel of experts are willing and able to take on the role of arbitrators, the notion that decisions concerning the distribution of national security information can be made apolitically is itself highly problematic.

The problem here is that ascertaining whether and when classified information should be shared with Congress requires the evaluation of costs and benefits that often cannot be estimated in any objective fashion. For instance—what will be the national security consequence of an inadvertent disclosure from Congress? An adjudicator who values public participation in decision-making will likely see the costs and benefits very differently from an adjudicator who prioritizes national security.

Finally, I note that even if arbitrators could have the knowledge and the objectivity to make ‘fair’ decisions about whether and when the president should be compelled to share classified information with Congress, the political valence of the decisions reached by these ‘secrecy regulators’ will eventually tempt political forces to ‘capture’ the office. How are citizens to know that these regulators have not been captured?

If a court or panel is to prevent unauthorized disclosures as effectively as the executive does, then it will likely have to create special forums where one or very few judges will examine the relevant materials in camera and ex parte. But if we take away the opportunity for external observers to study the basis of the decision reached by these judges or experts, how can we ascertain their disinterestedness?

The above was written before Edward Snowden recently disclosed information about some of the National Security Agency’s (NSA) surveillance operations. The realization that these operations were approved by the Foreign Intelligence Surveillance Court (FISC) has provoked criticism of the legitimacy and utility of the FISC’s secret oversight process. This turn of events bears out the concern raised on Page 99—that ‘secrecy regulators’ do not provide a stable solution to the problem of state secrecy because it is only a matter of time before citizens and interest groups start to question the legitimacy of a ‘secrecy regulator’ whose decision-making is opaque to them.